OFCCP: Ask the Experts

OFCCP Ask the Experts

Ask the Experts is an online forum where federal contractors and subcontractors are invited to submit questions to industry experts related to OFCCP compliance, affirmative action planning, and equal employment opportunity. Simply register your company on LocalJobNetwork.com to submit a question.

We have a question regarding the presence of English proficiency minimum qualifications in job postings. Hiring units in our company have been requesting the addition of the following minimum qualifications to their job postings:

* Must be able to communicate effectively in English. * Must be proficient in English.

What are your thoughts regarding these types of English minimum qualifications? Are there circumstances where this type of requirement is appropriate? What limitations exist in the use of these minimum qualifications, if any?

We occasionally get new employees who give multiple responses on their EEO Self-ID form. For example, an employee recently responded as Hispanic and Two or More Races (not Hispanic). What is the proper way to record such responses for reporting on EEO-1 and AAP?

If an EMPLOYEE declines to disclose EEO-1 reporting information the employer is instructed by the government to make a visual identification. And you’re in the same boat if s/he has provided information you cannot use for reporting purposes.

Of course, employers are reluctant to make visual identifications and I have a feeling that employees wouldn’t be thrilled with it either -- if they knew. But I suspect that the most likely explanation for these unusable responses is that some employees really don’t understand the options. I’d suggest that someone in HR, preferably someone from your EEO Compliance Team, get in touch with such employees. Whether you do this by email, by phone conversation or face-to-face is a judgment call and should also reflect the culture of your organization. But you might begin with the message apologizing if the form wasn’t clear and that this is not an uncommon occurrence when one is dealing with a STANDARDIZED GOVERNMENT FORMAT.

NEVER HESITATE TO BLAME THE FEDS…this is THEIR format and, as a contractor, you are REQUIRED to ask specific questions and provide a specific and limited choice of options for replies. That’s the truth and “deflecting” to this third party may serve to make an uncomfortable situation more comfortable for both employee and employer.

You MAY be able to prevent some/many such situations if you deal with this issue universally, up front, and very matter-of-factly. I have typically advised clients to include in their solicitations OF EMPLOYEES (not applicants) the following paragraph: “As a federal government contractor we are required to solicit certain personal, non-job related, information from our employees. We’re required to keep records and to file periodic reports with the government by standardized gender, race and ethnic categories. We recognize that some employees will find these questions intrusive or otherwise objectionable and we regret giving unintended offense. If an employee declines to provide the requested information in the format required by the government, the government requires us to do what it calls a “visual survey”. We think self-identification is likely to result in the most accurate information. Nevertheless, providing this information is voluntary and there will be no negative consequences if you elect not to do so. This information is kept confidential and is never used in making an employment decision.

(I'm not able to "bold" or underline here -- hence all the capitals! -- but I would "bold" the last eight words of that last sentence.)

On my Model EEO Survey form, I reinforce/remind respondents of their “identification options” in this way:

Sex - in the government mandated categories below - Check One Only

__ Male __ Female ___ I decline to provide information on gender.

Race/Ethnicity - in the government mandated categories below - Check One Only___ White, not Hispanic or Latino___ Black or African American, not Hispanic or Latino___ Hispanic or Latino (all races)___ Asian, not Hispanic or Latino___ Native Hawaiian or Other Pacific Islander, not Hispanic or Latino___ American Indian, Eskimo or Aleut, not Hispanic or Latino___ Two or more races, not Hispanic or Latino (for example, White and Black, or Black, Asian and Am. Indian)___ I decline to provide information on race/ethnicity.

(I would also use boldface type for the phrases "in the government mandated categories below" and "Check One Only".)

When dealing with hard copy forms it was always a huge challenge to fit everything on one page. With the greater flexibility of electronic surveys, you could also add, “if you have any questions or want to discuss your completion of this form, please feel free to… [ask the HR team member doing your orientation] [call Sue Smith at Ext. 123] [stop by the EEO office located ____________ for assistance]", as appropriate.

That said – perhaps my most important and often repeated advice is – DO NOT MAKE POLICY BASED ON EXCEPTIONS! If unusable responses are only an occasional problem, I’d handle each in the simplest, most low-key way possible. In the case you describe I DO NOT recommend just picking one of the responses the employee gave, although I’d be willing to bet that “Hispanic” is the single answer that would be most accurate AMONG THE CHOICES you and the employee have. (It’s almost certain the employee didn’t understand that s/he had to pick just one and that if s/he has Hispanic ancestry to check that box will always be the answer the government was looking for). Call her up, explain as above -- don't forget to bring the government into it! -- and ask her if she would be willing to change her response. If she declines to do so, then I’d make the “visual survey”, MAKE A RECORD IN THE PERSONNEL FILE, with a copy to the EEO Officer, about who did the visual and why and, henceforth, record/report to the government in the race/ethnic category that you “visually” discern.

But because you can't handle applicants in this way -- and there are likely many more of them in comparison to employees that are providing unusable responses -- I would strongly suggest making modifications TO THE GENDER, RACE, ETHNICITY questions (only) that will emphasize "the government makes us do it", "choose one only" and "government mandated categories".

Screening Questions for Internal & External Applicants

Asked by Elizabeth P. - Feb 06, 2019

We utilize screening questions in our Applicant Tracking System. Does the same disqualifying criteria need to be in place for both internal and external applicants?

No, Elizabeth, you need not have exactly the same “disqualifying criteria” for both internal and external job seekers – always assuming, of course, that such differences really ARE BASED SOLELY ON THAT STATUS. I hope I’m understanding that you would use as a reason something that was peculiar to that status and not something that could possibly be attributed to/associated with race, gender, etc. Or to deciding that a “basic qualification” that had already screened out external job seekers – and discouraged others -- would not screen out internal job seekers! NOTE: If that’s what you want to do, please ask the question again with some more details so that I can reply to those facts that are different than what I am assuming. That is, I’m assuming that would there be NO difference in the screening questions with respect to qualifications (education, experience, work history, etc.). Similarly, if this is a location/re-location issue, please include that in your question. I’ll try hard to comment on and help you achieve whatever is your lawful objective, but I no doubt could be more helpful with more information.

I inferred from your question that you wish to have reasons – and the concomitant disposition codes – for screening out internal job seekers than would not even be applicable to external job seekers. (If my inference is incorrect, please elaborate.) For example, I think most employers have (and properly should have!) "rules" that apply to internal applicants that would, at best, be illogical for external applicants. Since disposition codes must reflect as accurately as possible WHY the job seeker did not rise to the status of "Internet Applicant" or WHY an Internet Applicant did not advance to the next step in the selection process or was not offered the position it may be, in fact, NECESSARY to have some different “disqualifying criteria” – and disposition codes -- for internal job seekers.

A contractor might have a rule that an employee must be in his or her current position for at least six months to be eligible for another one. If an employee nevertheless expresses an interest in a vacancy, s/he may be eliminated PRIOR TO any consideration of even "basic qualifications" and thus, not "counted" as an applicant (Internet or otherwise). This is comparable to "rules" requiring that expressions of interest be submitted electronically, or accompanied by a resume; or requiring that an application be completed irrespective of whether a resume is supplied or -- for both internal and external job seekers (notice how I keep NOT using the word "applicants" until they are!) that the expression of interest must be submitted by a specified date.

Employers may always establish "ground rules" for the manner in which interest is expressed -- the only imperative is that the rules be applied uniformly for the same job. (Different rules may be in force for different jobs -- such as accepting applications when there are no vacancies only for hard to fill positions – though I discourage that because "pipelines" are a VERY tricky compliance challenge -- particularly with respect to record keeping.) And employers may lawfully change the "rules"/policy/procedure. There must be no discriminatory reason (nor would it be wise to do so in the middle of the selection process for a specific vacancy) and, of course, document, document, document.)

Internal are very different from external job seekers in an obvious and very important way: the employer already knows something about their job performance. If you advertise to internal job seekers that "basic qualifications" for the position include, for example, not being under an attendance restriction (or not applying for more than three opportunities at a time, or whatever) you should certainly have such a code(s) to disposition the applications for such employees who apply anyway. Performance appraisal ratings are so likely to be problematic that I would hesitate to make this a "basic qualification" but I would certainly recommend a disposition code to record this as the reason for non-selection (at whatever point in the process that occurs) if that's, in fact, the reason for the denial. (And do please start collecting data to analyze whether there's a statistically significant difference in the ratings of similarly situated men and women and various minority group members!)

There may be other ways in which you treat -- or wish to treat -- employees differently than external job seekers, in which case I strongly encourage you to have disposition codes that will record the non-discriminatory basis for that different treatment. Although your question concerned disqualifying criteria, the employer may also treat internal job seekers more favorably than external job seekers. For example, it's perfectly lawful for an employer to post a job internally only before inviting expressions of interest from the outside. Or, to serve its own needs, an employer may give an internal applicant more time to start in the new position than it would be willing to give to a new hire. Whether disqualifying or more favorable, it would be very helpful if your Applicant Tracking System identifies internal and external job seekers for purposes of extracting data for the required analyses.

I hope this has been helpful. Please feel free to ask again with more details

Minorities

Asked by Anonymous - Feb 06, 2019

I am putting together our AAP for our region (Oregon). I noticed that there are different minority benchmark % depending on location within a state. What % do you use, if you are creating an AAP for an entire region (state)? Thank you for the help.

Unless you are a construction contractor (and if you are, please ask the question again and say so) I assume your question refers to performing the Availability Analysis that the regulation (41 CFR 60-2.14) requires be performed for EACH Job Group and SEPARATELY for minorities and women. While the OFCCP annually established the percentage "benchmarks" for the hiring of veterans and for hiring of individuals with disabilities, the contractor must establish its own annual AAP Goals for women and minorities using the method mandated by regulation. The regulation requires the contractor to consider at least two factors; the first one involves estimating the percentage of minorities and of women who have the requisite skills who are outside the AAP workforce (external availability). The other factor is concerned with internal availability.

Your question relates to Factor 1 in determining estimated availability. Factor 1 is the percentage of women and the percentage of minorities -- having requisite skills -- in the "reasonable recruitment area" So the answer to your question is: IT DEPENDS! First, it depends on what the "reasonable recruitment area" is for EACH particular Job Group. It's unlikely that this geographic area, whether it is Oregon or perhaps the Pacific Northwest Region, or even as narrow as the immediate labor market surrounding the facility, or perhaps as wide as the entire United States is the same for each APP Job Group. Think: entry level labor or clerical positions versus Treasurer. Or Physicists versus Accountants. How far afield must the contractor typically seek qualified workers for the positions in the Job Group? Questions to ask yourself are: how many of the current incumbents in the Job Group were hired locally? For what jobs do we pay relocation expense? Does this Job Group include positions that we sometimes/always/never outsource to search firms?

Factor 1 also depends on the skills necessary for each Job Group. Contractors must use the most recent and most accurate statistics available. For each of many different geographical areas (i.e. “reasonable recruitment”) in the country, data from the last U.S. Census are available showing the percentage of women and of minorities who were working in jobs that vary from Boilermaker to Attorney to Landscaper, to Teacher, etc. -- a variety of occupations that are the closest proxy we have for “requisite skills”. A state job service may also provide statistical data, possibly more current but typically in much broader occupational groupings. The availability of minorities, regardless of skills, may be different in Oregon than in Mississippi – or Vermont. And, regardless of where the contractor recruits, the availability of women Carpenters is probably quite different than the percentage of women having requisite skills as Accountants. Consequently, the AAP writer must have knowledge of and take care in identifying the “reasonable recruitment area” separately for EACH Job Group.

[ESB Note: Estimating availability is WILDLY speculative. Among other things, the very best available data available – which is not necessarily very good -- will always be HISTORICAL although an AAP Goal is PROSPECTIVE. And, census data comes in only a few hundred occupational categories when in American workplaces there are thousands and thousands of very different jobs and job requirements. For example, with the possible exception of the college degree, for even the quite narrow census occupational category of “Electrical Engineer” the “requisite skills” are very different for such engineers working in electric power companies and those working in manufacturing.]

Factor 1 deals with external availability. Factor 2 deals with the estimated INTERNAL availability of minorities and women who might be promotable, transferrable, or trainable to move INTO (not within) the Job Group whose availability is being analyzed. [ESB NOTE: In this context “internal” means within the specific AAP workforce; not the entire company.] Remember also, this calculation is an annual exercise and determines the annual percentage goal, if any, for the upcoming AAP Year only. It may be that only when estimating internal availability of minorities and women for a Job Group of “Journeyworkers” will a contractor have such accurate data as the percentage of minorities and women in the final year of training in its Job Group “Apprentices”. More typically, the contractor would use the incumbency rate of women and minorities in whatever job(s) or Job Group(s) “feeds” the higher-level Job Group for which availability is being estimated.

[ESB NOTE: VERY often the manner in which Job Groups are designed (including, sometimes even especially, those encouraged by OFCCP compliance officers!) creates significant challenges in estimating availability. This has a “ripple effect” on both the comparison of incumbency to availability and the reasonableness of/ability to meet goals. The availability percentage will determine not only IF a goal must be established (i.e., if the difference between incumbency of minorities and/or women in the Job Group is "less than reasonably expected") but also the SIZE of the hiring/selection rate goal if one is, in fact, required.]

I’ll expand my answer to briefly address some other mandatory considerations in the estimating of availability of minorities and women for each AAP Job Group. The OFCCP regulation is quite detailed in its expectations of the rigor with which contractors will perform this estimate of availability. The applicable OFCCP regulation imposes considerable structure on how to arrive at what will always be only an “estimate” of prospective availability for the upcoming AAP Year. For example, if in a single Job Group there are multiple jobs with different "requisite skills" (a very common situation, particularly in a small workforce) the contractor must give different arithmetic weight to the varying availability percentages else it either underestimate or overestimate “availability” of minorities and women for the entire Job Group. See 41 CFR 60-2/14(g). This “weighting” is used to arrive at a “composite availability” for the Job Group. Typically, this is done using a special software application but it IS doable (if tedious!) manually. For example, and very simplistically, if the contractor has established a Job Group of "Professionals" (I hope it hasn't, that's much too broad but it does happen) and the Job Group has 40 incumbents of which 36 are Nuclear Engineers (an availability of women in the recruiting area of 5%), two incumbents is an accountant (for which female availability is 50%), and two are Human Resources Specialists (for which Factor 1 availability of women is 50%), one may NOT simply add together those percentages (105%) and divide by 3 to arrive at the availability of women for the Job Group. The resulting estimated availability of 35% women for this theoretical Job Group is demonstrably inaccurate! What good faith effort could possibly be expected to produce an applicant pool of 35% women for vacancies for Nuclear Engineers? Need I add that the flip side of this situation would be equally intolerable: the OFCCP would certainly challenge an understated availability of women and minorities arrived at by combining in a Job Group job titles that are similar in EEO-1 code (NOT a regularly design criterion!) but not similar in “wages, content and opportunity”, the latter of which ARE the regulatory design criteria.

To be consistent and by inference if not regulation, one must also be able to justify what weight it has given Factor 1 versus Factor 2 in the overall estimate of availability, as well as any other situations where there are multiples, i.e. availability percentages of women and minorities in multiple Feeder Jobs/Job Groups or multiple “reasonable recruiting areas” should also be “weighted”. With respect t

Nationwide Goals for AAP

Asked by Anonymous - Feb 06, 2019

What are the nationwide percentage goals for IWDs, veterans, women and minorities?

I am pretty familiar with OFCCP regulations, but I can't find good information about how to think about promotions.

In our current system, we do not promote employees in the usual fashion. What we do is open the position internally, have people apply, and then give the job to the best qualified person. This is very taxing on time but is the only way we know how to stay compliant.

There must be a mechanism where federal contractors can promote people without going through that whole process. Am I reading into it too much? Or are we truly playing by the book? Is there a process I can implement so we can shoulder-tap and stay compliant?

OFCCP has never provided effective guidance regarding promotions. Many people read the agency's "Internet Applicant" regulations as a guideline to dealing with promotions, but a close reading of those regulations suggest that they were developed to deal with issues surrounding new hires (that is, external selections) rather than promotions (that is, internal selections).

OFCCP does not force employers to provide an avenue for employees to express interest in every internal opening. The agency recognizes that some internal openings will be filled through natural progression or through the selection of an obvious candidate for the opening. What OFCCP does require is that employers ensure there is no discrimination in regard to the selection process for internal or external openings.

There is value in providing a mechanism for employees to express interest in internal openings. From a regulatory perspective, such a mechanism establishes a clearly defined pool of candidates for the opening. From an employee morale perspective, such a mechanism establishes that the employer is interested in the welfare and advancement of employees. However, this does not mean that every internal opening must provide for a mechanism to consider multiple candidates.

The best course of action is to establish a policy for which internal openings will be opened to multiple candidates. A policy that says "All openings except those where there is a natural line of progression will be posted for employees to express interest" would be one approach to dealing with situations where there are these natural lines of progression. A policy that says "All openings except those in senior management" or that says "All openings except those at a defined grade or wage level" would also be acceptable to OFCCP so long as such a policy does not artificially prevent any particular demographic group from receiving consideration.

You ask "Is there a process I can implement so we can shoulder-tap and stay compliant?" The old-fashioned "shoulder tap" is a form of promotion where you should be wary. Designating certain employees for advancement may be entirely logical where there are pre-defined criteria suggesting that a particular employee is the obvious choice for a new position. However, giving managers full discretion to determine who should be promoted without establishing some type of criteria for advancement and without providing a mechanism for others to advance may lead to decisions that will be questioned by OFCCP.

OFCCP compliance reviews tend to hing on the following idea: have we selected the best qualified person for open positions? A posting procedure where employees are asked to express interest in new positions and there are established criteria used to determine who is best qualified is one way to demonstrate that the best qualified person has been selected. However, a policy that explicitly lays out paths for promotion and provides job-related limitations in who might be considered would be another way to demonstrate that the best qualified candidates has been selected.

You do not need to post every position internally. You do need to have a mechanism to demonstrate that a person chosen for promotion is the best qualified employee for the new position.

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